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CORRIGAN v. METHODIST HOSP.

July 11, 1994

JUDY CORRIGAN
v.
METHODIST HOSPITAL and SANFORD DAVNE, M.D. and DONALD MYERS, M.D.



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 The instant medical malpractice case is presently before this court upon motion of the defendants for a protective order precluding the plaintiff from discovering, via deposition of the Hospital's Chief Executive Officer, or otherwise, the findings, recommendations, evaluations, opinions or other actions of the hospital's Peer Review Organizations and upon the plaintiff's cross-motion to strike the hospital defendant's objections to the plaintiff's Request for Production of Documents. For the reasons which follow and to the extent that the plaintiff seeks to discover information and materials which are protected by the Pennsylvania Peer Review Protection Act, the motion for protective order is granted and the objections are sustained.

 Briefly stated, the matter at bar arises out of the alleged misdiagnosis and treatment of a meningiomal tumor located in the plaintiff's thoracic spine by the defendant doctors Davne and Myers and what plaintiff hereby contends was their performance of unnecessary lumbar fusion surgery at the defendant Methodist Hospital in March, 1992. In addition to alleging that Drs. Davne and Myers were negligent in their misdiagnosis and treatment, Ms. Corrigan also claims that all of the defendants failed to advise her that they planned to utilize the Acromed VSP plate and pedicle screw system in the surgery, that the defendant doctors had a financial interest in the company which manufactured that screw system or that the use of the said plate and screw system in such surgeries was still considered to be investigational by the FDA. Plaintiff's complaint also includes a count alleging that Methodist Hospital was negligent in its extension of operating privileges to Drs. Davne and Myers in that it knew or should have known that the doctors were reputed to be "overly aggressive and indiscriminate surgeons who were the subject of numerous lawsuits and whose medical judgment was in question, and despite the fact that Methodist's Physician Review Board unanimously rejected the extension of privileges to Defendants, Myers and Davne."

 On or about May 20, 1994, plaintiff served a Notice of Deposition on Methodist Hospital for the oral deposition of Kevin Hannifan, Methodist's Chief Executive Officer and a corporate designee on June 21, 1994 and directing the witnesses to bring with them: "(a) copies of any hospital or institutional review board or members of the institutional review board and/or surgeons and/or administrators records, memoranda, correspondence, minutes of meetings and/or any other documentation relevant to the consideration, approval and/or use of VSP Plates or Screws and/or any other pedicle screw system;" and "(b) copies of any and all hospital, administrative, institutional review board or other records, memoranda, correspondence, minutes of meetings and/or any other documentation relevant to the review, consideration, approval, grant of privileges or other communications regarding Dr. Sanford Davne and Dr. Donald Myers." In addition, via correspondence dated June 24, 1994 addressed to Methodist's attorney, plaintiff's counsel stated that he wished to depose "a corporate designee from Methodist Hospital most knowledgeable in the following areas:

 1. Hospital policy, practices and procedures regarding the approval and use of surgical implants and investigational devices in surgery conducted in the hospital during 1992. This person should have eminent knowledge of Methodist Institutional Review Board and the Institutional Review Board's role in the hospital's monitoring and approving the use of surgical implants and investigational devices in surgery in Methodist Hospital during 1992.

 2. The consideration, rejection, and/or approval of Dr. Davne and Dr. Myers to be on staff at Methodist. This area of inquiry includes but is not limited to what investigation/evaluation was done of the background of these physicians, their qualifications, their experience, the type of surgeries that they performed, and all documents, knowledge and information concerning their competency to practice medicine and to perform pedicle screw surgeries which existed prior to the time of Ms. Corrigan's surgery.

 3. The investigation, review, or consideration of the use of VSP plates and/or screws in surgery at Methodist Hospital during 1992, including but not limited to all documents, studies, and information supplied to the hospital utilized in the decision to permit such surgeries at the hospital."

 In refusing to produce either Mr. Hannifan or a corporate designee for deposition and in moving for a protective order, Methodist Hospital invokes the confidentiality provision of the Pennsylvania Peer Review Protection Act, 63 P.S. ยง 425.4 and Fed.R.Civ.P. 26(c). Rule 26(c), of course, provides in pertinent part:

 
"Upon motion by a party from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending.....may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including one or more of the following:
 
(1) that the disclosure or discovery not be had:
 
(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place;
 
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
 
(4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be ...

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